On 14 June 2013, the complainant, a 3 year 8 month old girl (born 28 October 2009), alleged that the appellant raped her in the morning while her mother was at the market. The complainant testified that the appellant, whom she knew as Bhagga, placed his 'scary thing' (penis) onto her 'scary thing' (vagina) and made coital movements. The complainant's mother discovered what she believed to be sperms on her daughter's vagina after bathing her. She took the child to a doctor on the evening of the same day. The medical report dated 17 June 2013 stated there was no visible evidence of penetration, though sexual abuse could not be ruled out. The appellant was HIV positive. He denied the charge, stating he spent the day with his friend Munyaradzi John and was surprised when accused at about 6 pm. The trial court convicted the appellant of rape as defined in s 65 of the Criminal Law (Codification and Reform) Act and sentenced him to 10 years imprisonment.
The appeal succeeded in part. (i) The conviction and sentence for rape were quashed and set aside; (ii) The appellant was convicted of attempted rape as defined in s 189 read with s 65 of the Criminal Law (Codification and Reform) Act; (iii) The appellant was sentenced to 7 years imprisonment, of which 3 years were suspended for 5 years on condition he does not commit any offence of a sexual nature during that period for which he is sentenced to imprisonment without the option of a fine. Effective sentence: 4 years imprisonment.
Where evidence shows sexual contact without penetration (placing of penis on vagina with coital movements) and medical evidence confirms no visible penetration occurred, the appropriate conviction is attempted rape rather than completed rape. The mandatory minimum sentence provisions in s 80(1)(a) and (c) of the Criminal Law (Codification and Reform) Act for rape by HIV-positive persons do not apply to attempted rape where the attempt did not involve penetration that incurs a risk of HIV transmission, by virtue of proviso (ii) to s 80(1). In such cases, the court retains sentencing discretion and is not bound by the mandatory 10-year minimum sentence.
The court observed that young first offenders can sometimes qualify to be sent to jail, with each case depending on its own facts. The court noted that it considered all circumstances in mitigation, including the appellant's youthfulness, first offender status, and ill health, but found that the serious nature of attempting to rape a 3 year 8 month old child while HIV-positive warranted a substantial custodial sentence. The court expressed hope that the suspended portion of the sentence would act as a specific deterrent to the appellant in his future conduct. The court also noted that the complainant's testimony, though from a very young child, was remarkably clear and convincing, given with the assistance of anatomically correct dolls.
This case provides important guidance on the distinction between rape and attempted rape in Zimbabwean criminal law, particularly in cases involving very young children where medical evidence does not establish penetration. It clarifies the application of mandatory minimum sentencing provisions for HIV-positive offenders under s 80(1) of the Criminal Law (Codification and Reform) Act, specifically that proviso (ii) exempts attempted rape from mandatory minimums where the attempt does not involve penetration that incurs risk of HIV transmission. The case demonstrates judicial willingness to accept testimony from very young children (under 4 years old) where it is clear, convincing and substantially unshaken, while still requiring corroboration and careful assessment. It also illustrates the court's sentencing discretion in attempted rape cases involving HIV-positive offenders, balancing the seriousness of sexual offences against young children with mitigating factors such as youth and first offender status.